Appealed from: Merit Systems Protection Board; ON MOTION TO TRANSFER OR TO STAY PROCEEDINGS.
Before Newman, Bissell, and Archer, Circuit Judges. Newman, Circuit Judge.
Thomas W. Hill moves to transfer this appeal to the United States District Court for the District of New Mexico. The appeal is from a decision of the Merit Systems Protection Board ("Board") sustaining Dr. Hill's removal from employment by the Department of the Air Force ("agency"). Dr. Hill contends that this is a "mixed case" involving discrimination because of age. The agency opposes the motion to transfer, arguing that the issue of age discrimination was frivolous and was dismissed by the Board, and therefore that a "mixed case" never existed.
Dr. Hill moves in the alternative to stay this appeal pending the outcome of certain proceedings before the district court. The agency also opposes this motion.
The threshold determination of whether this is a "mixed case" requires review of the presiding official's ruling that Dr. Hill's discrimination claims were frivolous. If that ruling is correct it would be improper to transfer this case to a court that is not authorized to receive it. But if the case before us is indeed a "mixed case", in which "the employee is challenging judicially the board's determinations of both the discrimination and the nondiscrimination issues", the appeal lies solely with the district court. Williams v. Department of the Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983) (in banc). See also Hilliard v. United States Postal Service, 722 F.2d 1555 (Fed. Cir. 1983).
In Meehan v. United States Postal Service, 718 F.2d 1069 (Fed. Cir. 1983), the agency had moved to dismiss the appeal filed in this court on the ground that the case involved claims of racial discrimination. The presiding official had conducted a hearing on asserted discrimination and non-discrimination issues, but the petitioner offered no evidence of racial discrimination and the Board held that the petitioner failed to carry his burden on that claim. This court held that the petitioner's allegations of discrimination on appeal, "if proved, would be insufficient to establish that a basis for the adverse action was racial discrimination". Id. at 1073. Thus the motion to dismiss was denied. In Meehan, unlike the facts now before us, the petitioner had no intention of proceeding in district court, a factor this court deemed significant to its conclusion in denying the transfer. Meehan is relevant for its review of factors pertinent to the discrimination claim in order to make a threshold determination of appellate jurisdiction.
In accordance with Meehan, Williams, and other precedent, this court determines whether this is a "mixed case" in the same manner in which we review other threshold questions before reaching an appeal on the merits. See Spears v. Merit Systems Protection Board, 766 F.2d 520 (Fed. Cir. 1985) (issue of res judicata); Synan v. Merit Systems Protection Board, 765 F.2d 1099 (Fed. Cir. 1985) (issue of Board jurisdiction); Ballentine v. Merit Systems Protection Board, 738 F.2d 1244 (Fed. Cir. 1984) (issue of Board jurisdiction); Wallace v. Merit Systems Protection Board, 728 F.2d 1456 (Fed. Cir. 1984) (issue of timeliness of appeal). To transfer a case containing a specious or inadequate allegation of authority in the transferee court, without review of the threshold issue of jurisdiction, would violate both 28 U.S.C. § 1631 and our judicial responsibility. Further, the jurisdiction of this court shall not be thus circumvented. It was plainly not the intent of Congress to enable manipulation of appellate jurisdiction by the mere mention of discrimination in a petition for review.
Determination of our jurisdiction requires review of Dr. Hill's allegations of discrimination for this limited purpose. If Dr. Hill presented a non-frivolous allegation of prohibited discrimination, he was entitled to a hearing thereon before the Board. If the Board improperly denied such hearing, we must remand to the Board for this purpose.*fn1 But if the Board correctly held that the employee presented no more than a frivolous allegation of discrimination then there never was a "mixed case", and review of the merits of the adverse action lies exclusively with the Federal Circuit.
After careful review of the record, we conclude that Dr. Hill alleged no set of facts which, if proven, would comprise even a minimum prima facie case of age discrimination.*fn2 The Board correctly held that Dr. Hill had not raised a nonfrivolous allegation of discrimination. Thus this appeal is not a "mixed case" under 5 U.S.C. § 7702, and the jurisdiction of this appeal is governed by 5 U.S.C. § 7703(b)(1).
Accordingly, IT IS ORDERED:
(1) The motion to transfer this appeal to the United States District Court for the District of New Mexico is denied.
(2) The motion to stay this appeal ...