                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2010-3013


                              ANNA M. BUENROSTRO,

                                                      Petitioner,

                                           v.

                            DEPARTMENT OF JUSTICE,

                                                      Respondent.


      Anna M. Buenrostro, of Bellflower, California, pro se.

       Jeffrey A. Regner, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Alan J. Lo Re, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2010-3013

                               ANNA M. BUENROSTRO,

                                                               Petitioner,

                                           v.

                            DEPARTMENT OF JUSTICE,

                                                               Respondent.


     Petition for review of the Merit Systems Protection Board in SF-0752-09-0072-I-1.
                            __________________________

                             DECIDED: April 8, 2010
                           __________________________


Before MAYER, LINN, and DYK, Circuit Judges.

PER CURIAM.

      Anna M. Buenrostro seeks review of the final decision of the Merit Systems

Protection Board upholding her removal by the Department of Justice (the “agency”)

due to excessive absence. See Buenrostro v. Dep’t of Justice, No. SF-0752-09-0072-I-

1 (M.S.P.B. July 24, 2009). Because we lack subject matter jurisdiction to review the

appeal, we dismiss.

      Prior to her removal, Buenrostro was employed by the agency at the Metropolitan

Detention Center (“MDC”) in Los Angeles, California, first as a physician’s assistant and

then as a correctional officer. On February 7, 2008, she requested leave without pay
(“LWOP”) under the Family Medical Leave Act (“FMLA”) from February 8, 2008, until

April 26, 2008. This request was approved. On April 28, 2008, she requested that the

LWOP period be extended through July 26, 2008. The MDC warden approved her

request for the period of April 27, 2008, through May 2, 2008, at which point she would

have exhausted the twelve weeks of leave allowed per twelve-month period under the

FMLA. The warden explained that additional LWOP could not be approved “due to the

needs of the institution in maintaining the ability to provide the highest quality of care to

the inmate population.” He also warned that if Buenrostro did not report to work on May

5, 2008, she would be considered absent without leave and could face disciplinary

action, including removal. She requested reconsideration of her leave request, which

was once again denied. Despite the denial of her requests, she did not report to work

and remained on absent without leave status from May 5, 2008, until August 22, 2008,

when an associate warden proposed that she be removed for excessive absence. On

October 2, 2008, the warden approved her removal, effective October 5, 2008.

       Buenrostro appealed her removal to the board, arguing that the agency had

improperly denied her leave requests and that her removal was due to discrimination on

the basis of race and gender and was in retaliation for two complaints she had

previously filed with the Equal Employment Opportunity Commission alleging such

discrimination. *   An administrative judge determined that her absences were not

approved, that the agency properly denied her leave requests, that she failed to meet

       *
                The commission denied one of the complaints and dismissed the second
for failure to state a claim. Buenrostro subsequently filed suit against the agency in the
United States District Court for the Central District of California, alleging racial
discrimination and a hostile work environment. The court granted the agency’s motion
for summary judgment and the case is currently on appeal to the United States Court of
Appeals for the Ninth Circuit.

2010-3013                                    2
her burden of proof for the affirmative defenses of discrimination and retaliation, and

that the agency’s choice of penalty was reasonable.             The administrative judge’s

decision became the final decision of the board when the board denied Buenrostro’s

petition for review.

       We agree with the government that this matter must be dismissed because 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, disability, age, or

genetic information.”    29 C.F.R. § 1614.302(a)(2).      We lack jurisdiction to review a

mixed-case appeal decided on the merits unless the discrimination claim is waived.

See Williams v. Dep’t of the Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983) (en banc).

Instead, judicial review of the board’s decision in such a case is available in the federal

district courts. Id.

       Buenrostro alleges that discrimination was a basis for the agency’s removal

decision, and she has not waived this claim on appeal. On the statement concerning

discrimination she filed pursuant to Federal Circuit Rule 15(c), she did not check the box

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

handicapped condition raised before and decided by the Merit Systems Protection

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

other court.” Instead, she checked the box which reads: “No claim of discrimination by

reason of race, sex, age, national origin, or handicapped condition has been or will be

made in this case.” She also states in her reply brief that “this is not a discrimination

case.” These statements, however, are inconsistent with the petition for review she filed




2010-3013                                     3
with this court, in which she confirms that she raised claims of discrimination based on

gender, race, and reprisal before the board and argues that the board incorrectly denied

each of them.     Buenrostro has not waived her discrimination claim and is instead

pursuing review of all the issues decided by the board, which requires that we dismiss

her appeal for lack of subject matter jurisdiction.




2010-3013                                     4
