             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
             citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit

                                       06-3203


                               MARGARET Y. FRLETA,

                                                Petitioner,

                                           v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                                Respondent.

                          ____________________________

                           DECIDED: September 11, 2006
                          ____________________________


Before LOURIE, DYK, and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      Margaret Y. Frleta (“Frleta”) appeals from the final decision of the Merit Systems

Protection Board (the “Board”) sustaining her removal by the Department of Homeland

Security (the “agency”). Frleta v. Dep’t of Homeland Security, SF-0752-05-0249-I-1

(M.S.P.B. Jan. 20, 2006) (“Final Decision”). Because we lack subject matter jurisdiction

to review Frleta’s mixed-case appeal on the merits, we dismiss.

                                   BACKGROUND

      Frleta was a General Attorney, GS-14, at the agency’s Immigration and Customs

Enforcement division, Office of the Chief Counsel, in Los Angeles, California since
1996.     Frleta v. Dep’t of Homeland Security, SF-0752-05-0249-I-1, slip op. at 2

(M.S.P.B. July 22, 2005) (“Initial Decision”).    In this position, she worked as a trial

attorney representing the agency before the immigration courts. Id. On August 27,

2002, Frleta was convicted in the Superior Court of California, County of Orange, on a

criminal charge of battery. Id. The conviction was based on a “road rage” incident in

June 2001, in which Frleta fought with another driver beside a public road. Id. The

Superior Court found that she was the aggressor, used racial epithets, and gave

testimony that was not credible. Id. Frleta appealed that decision, and it was affirmed

on September 26, 2003. Id.

        In part because of medical problems resulting from injuries that she suffered in

the “road rage” incident, Frleta was frequently tardy or absent from work, in fact,

approximately 25% of the time in 2003. Id. In July 2003, she was counseled about her

attendance by her supervisors, but, after initial improvement, her attendance

deteriorated again after a short time. Id. On February 18, 2004, Deputy Chief Counsel

Charles Martinez gave Frleta a letter establishing certain procedures for Frleta to use to

request and document medical leave, and gave instructions to be followed when she

expected to be late for work. Id.

        On May 13, 2004, Chief Counsel John Salter proposed Frleta’s removal on three

charges: first, conviction of battery resulting from the “road rage” incident; second,

failure to follow instructions in the leave restriction letter from Martinez on 30 different

work days between February 19 and May 7, 2004; and third, absence without leave on

the same dates. Id., slip op. at 4. On May 20, 2004, due to illness, Frelta requested a




06-3203                                  -2-
six-month extension of time in order to respond. Id. The agency granted her request in

part, and she responded on July 28, 2004. Id.

       On November 24, 2004, the agency sustained all three charges as well as

Frleta’s removal, effective December 24, 2004. Id., slip op. at 4-5. Frleta appealed the

agency’s decision to the Board, alleging that she was denied due process, that the

Superior Court erred in convicting her of battery, that certain documents were missing

from her file, that the agency discriminated against her on the basis of race and national

origin, and that the penalty imposed upon her was unreasonable. Id., slip op. at 5, 7,

14. 18, 20, 22.

       On July 22, 2005, the Administrative Judge (“AJ”) sustained the agency’s

charges and the penalty of removal, except for the charge of absence without leave on

the dates that Frleta was charged with tardiness rather than absenteeism. Frleta sought

review by the full Board, the Board denied her petition, and the AJ’s decision

accordingly became the final decision of the Board. See 5 C.F.R. § 1201.113(b) (2006).

Frleta timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     DISCUSSION

       On appeal, Frleta argues that the agency lied and destroyed records of her leave

and medical documents in order to discredit her and terminate her employment. She

also contends that the Board erred in not finding that her removal was the result of

discrimination against her based on race and national origin. In addition, Frleta asserts

that the Board erred in refusing her the right to address the battery charge.         The

government responds that the Board’s determinations are supported by substantial




06-3203                                 -3-
evidence. According to the government, the AJ fully considered Frleta’s allegations

regarding missing documents, and found her testimony to not be credible.                The

government also argues that Frleta’s appeal should be dismissed for lack of subject

matter jurisdiction because she is appealing discrimination claims.         In addition, the

government asserts that the Board correctly determined that Frleta was estopped from

denying the underlying misconduct for her battery conviction under the doctrine of

collateral estoppel.

       We agree with the government that this appeal must be dismissed, as it is a

mixed-case appeal. A mixed-case appeal is “an appeal filed with the MSPB that alleges

that an appealable agency action was effected, in whole or in part, because of

discrimination on the basis of race, color, religion, sex, national origin, handicap or age,”

29 C.F.R. § 1614.302(a)(2) (2004). Pursuant to 28 U.S.C. § 1295(a)(9), this court lacks

jurisdiction to review a mixed-case appeal decided on the merits without a waiver of

such claims. See Lang v. Merit Sys. Prot. Bd., 219 F.3d 1345, 1347 n.2 (Fed. Cir.

2000) (If an employee “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.”); Williams v. Dep’t of the Army, 715 F.2d

1485 (Fed. Cir. 1983) (en banc) (holding that this court lacks jurisdiction in “mixed”

cases involving discrimination and non-discrimination challenges pursuant to 5 U.S.C.

§ 7703(b)(1)).

       Here, Frleta alleges that discrimination and retaliation were the basis for the

agency’s removal decision, and she has not waived those claims on appeal. Indeed, in

her “Statement Concerning Discrimination” pursuant to Federal Circuit Rule 15(c), which




06-3203                                  -4-
she submitted upon filing her petition for review here, she did not check the box which

read: “Any claim of discrimination by reason of race, sex, age, national origin, or

handicapped condition raised before the employing agency or the Merit Systems

Protection Board or arbitrator has been abandoned or will not be raised or continued in

this or any other court.”     Frleta also stated on that form that she had filed a

discrimination case in the Equal Employment Opportunity Commission from the Board’s

decision.   These facts are clear.    Accordingly, because Frleta has not waived her

discrimination claims, we dismiss her appeal for lack of subject matter jurisdiction.




06-3203                                 -5-
