Case: 13-3033    Document: 32     Page: 1   Filed: 11/21/2013




           NOTE: This order is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                    LARRY BROOKS,
                       Petitioner,

                             v.

         DEPARTMENT OF THE AIR FORCE,
                   Respondent.
              ______________________

                        2013-3033
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. AT0752120103-I-1
                 ______________________

                      ON MOTION
                  ______________________

    Before NEWMAN, PROST, and REYNA, Circuit Judges.
 REYNA, Circuit Judge.
                         ORDER
     In light of Larry Brooks’s and the Department of the
 Air Force’s responses to this court’s show cause order, we
 consider whether this case should be dismissed or trans-
 ferred to a district court pursuant to 28 U.S.C. § 1631.
    Brooks was removed from his position as a Sheet
 Metal Mechanic Supervisor at Robins Air Force Base
Case: 13-3033    Document: 32     Page: 2     Filed: 11/21/2013



 2                              BROOKS   v. AIR FORCE



 based on a charge of inappropriate conduct. Brooks
 appealed the removal to the Merit Systems Protection
 Board. Brooks argued that he did not make any of the
 statements attributed to him and asserted two affirmative
 defenses – race and age discrimination. The Administra-
 tive Judge affirmed the Air Force’s removal of Brooks, and
 the full Board denied Brooks’s petition for review.
     Brooks then filed a petition for review with this court.
 The petition was subsequently dismissed for failure to
 submit a required Statement Concerning Discrimination
 in accordance with the Rules of Practice. Brooks moved to
 reopen the appeal. The court granted the motion “for the
 purposes of addressing whether this court has jurisdiction
 due to the Supreme Court’s recent decision in Kloeckner v.
 Solis, [___ U.S. ___, 133 S.Ct. 596 (2012).]” The parties
 were directed to respond why this case should not be
 dismissed or transferred to a district court in light of
 Kloeckner.
      In Kloeckner, the Supreme Court held that a federal
 employee who claims that an agency action appealable to
 the Board violates an antidiscrimination statute listed in
 5 U.S.C. § 7702(a)(1) should seek judicial review in dis-
 trict court, not in the Federal Circuit. Id. at 607. This
 case involves an agency removal action that the employee
 “may appeal to the Merit Systems Protection Board,” and
 in which the employee “alleges that a basis for the action
 was discrimination[.]” 5 U.S.C. § 7702(a)(1).       Judicial
 review is therefore assigned to the district court.
     Brooks and the Department of the Air Force argue
 that this court has jurisdiction to hear the petition for
 review. Because Brooks’s proffered Statement Concern-
 ing Discrimination indicates that “[a]ny claim of discrimi-
 nation by reason of race, sex, age, national origin, or
 handicapped condition raised before and decided by the
 [Board] . . . has been abandoned or will not be raised or
 continued in this or any other court.” According to the
Case: 13-3033         Document: 32   Page: 3   Filed: 11/21/2013



 BROOKS   v. AIR FORCE                                      3



 parties, this “waiver” of any discrimination claim triggers
 this court’s jurisdiction. We disagree.
     Brooks’s appeal before the Board alleged discrimina-
 tion based on age and race. As the Board recently ob-
 served, there is nothing in the statutes suggesting “that
 the appellant can transform a mixed case into a nonmixed
 case after the Board has issued a decision simply by not
 seeking judicial review on a discrimination claim.” Mills
 v. USPS, 119 M.S.P.R. 482 ¶9 (2013) (concluding that
 “from now on the Board will not inform appellants in
 mixed cases that they may seek judicial review before the
 Federal Circuit on issues other than discrimination”); see
 also Doe v. Dep’t of Justice, No. 2012-3204, 2013 U.S. App.
 Lexis 9095 (Fed. Cir. May 3, 2013) (transferring to the
 district court a petition for review in which the petitioner
 had indicated in his Statement Concerning Discrimina-
 tion that any claim of discrimination was abandoned).
     Because Kloeckner is clear that judicial review of a
 Board decision in a mixed case that includes a discrimina-
 tion claim is assigned to the district court, rather than
 this court, we transfer the petition for review to the
 appropriate district court, the United States District
 Court for the Middle District of Georgia.
       Accordingly,
       IT IS ORDERED THAT:
      The petition is transferred to the United States Dis-
 trict Court for the Middle District of Georgia pursuant to
 28 U.S.C. § 1631.
                                       FOR THE COURT

                                       /s/ Daniel E. O’Toole
                                           Daniel E. O’Toole
                                           Clerk of Court
 s25
