Case: 12-3142    Document: 34     Page: 1   Filed: 09/17/2013




           NOTE: This order is nonprecedential.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 LOURIE, O'MALLEY, AND REYNA, Circuit Judges.
 O'MALLEY, Circuit Judge.
                        ORDER
     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: 2    Filed: 09/17/2013




 2                                   ALBERT SCHULTZ   v. MSPB
      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.
Case: 12-3142     Document: 34      Page: 3    Filed: 09/17/2013




  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.
Case: 12-3142     Document: 34   Page: 4   Filed: 09/17/2013




 4                                 ALBERT SCHULTZ   v. MSPB

 of Pennsylvania. The district court would have jurisdic-
 tion over this case pursuant to 5 U.S.C. § 7703(b)(2).
       Accordingly,
       IT IS ORDERED THAT:
     (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.
                                   FOR THE COURT

                                   /s/ Daniel E. O'Toole
                                       Daniel E. O'Toole
                                       Clerk

 s25

 ISSUED AS A MANDATE: September 17, 2013
