Case: 12-3204     Document: 32    Page: 1   Filed: 12/20/2012




           NOTE: This order is nonprecedential.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 case no. CH0752090404-I-1.
                __________________________

                       ON MOTION
                 __________________________

                        ORDER
     John Doe moves 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 opposes and moves to dismiss
 Doe's petition for review for lack of jurisdiction. Doe
 replies and opposes dismissal. The Department of Justice
 replies.
Case: 12-3204      Document: 32    Page: 2    Filed: 12/20/2012




 JOHN DOE V. DOJ                                            2

     Doe was removed in 2009 from his position as an As-
 sistant United States Attorney. On appeal to the full
 Board, the Board remanded Doe's removal to the agency
 and directed the agency to apply its internal procedures
 for Access Review Committee Review of the decision to
 withdraw an employee's eligibility for access to classified
 information under 28 C.F.R. Part 17. The Board set forth
 procedures to be followed on remand, and stated that Doe
 could file a new petition for appeal with the regional office
 after the agency had informed Doe that it had carried out
 the Board's order.
     Doe petitioned this court for review and asserts, inter
 alia, that he was entitled to an immediate reinstatement
 without remand proceedings. He moves to stay those
 remand proceedings or to treat his request as a petition
 for a writ of mandamus.
     On December 10, 2012, the Supreme Court decided
 Kloeckner v. Solis, 565 U.S. ---, slip op no. 11-184 (2012).
 Neither party addresses that case because of its recent
 issuance. In Kloeckner, the Supreme Court held that if a
 petitioner claims that an agency action appealable to the
 MSPB violates an antidiscrimination statute listed in 5
 U.S.C. § 7702(a)(1), the petitioner must seek judicial
 review in a district court and not with this court. Id., slip
 op. at 14. Here, the Board's decision states that Doe
 raised, inter alia, claims that his removal was due to
 disability discrimination and due to retaliation for filing
 equal employment opportunity complaints. The Depart-
 ment of Justice's motion to dismiss further raises the
 jurisdictional concern whether the Board's remand order
 is final for purposes of review. See Weed v. Soc. Sec.
 Admin., 571 F.3d 1359 (Fed. Cir. 2009) (court lacked
 jurisdiction over petition for review of Board remand
 order because it was not a final order). It would appear
 based upon the papers submitted that this court lacks
 jurisdiction due to the holding of Kloeckner.
Case: 12-3204     Document: 32      Page: 3   Filed: 12/20/2012




 3                                            JOHN DOE V. DOJ

     The court determines that further briefing concerning
 the jurisdictional issues is required. Doe and the De-
 partment of Justice are directed to respond, within 10
 days of the date of this order, concerning why this case
 should not be dismissed or transferred to a district court
 pursuant to 28 U.S.C. § 1631 because of the Kloeckner
 holding. Each side's response should not exceed 10 pages.
      Upon consideration thereof,
      IT IS ORDERED THAT:
     (1) Doe and the Department of Justice are directed to
 respond, within 10 days of the date of this order, concern-
 ing why this case should not be dismissed or transferred
 to a district court pursuant to 28 U.S.C. § 1631.
      (2) All pending motions are held in abeyance.

                                      FOR THE COURT


                                      /s/ Jan Horbaly
                                      Jan Horbaly
                                      Clerk

 s8
