James R. Welcome v. Raymond E. Mabus , 692 F. App'x 988 ( 2017 )

Case: 16-17079 Date Filed: 07/07/2017 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-17079
Non-Argument Calendar
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D.C. Docket No. 3:15-cv-00121-MCR-EMT
JAMES R. WELCOME,
Plaintiff-Appellant,
versus
RAYMOND E. MABUS,
Secretary of the Navy,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(July 7, 2017)
Before TJOFLAT, JORDAN and ROSENBAUM , Circuit Judges.
PER CURIAM:
Case: 16-17079 Date Filed: 07/07/2017 Page: 2 of 3
James Welcome appeals the District Court’s grant of the Secretary of the
Navy’s motion to dismiss, or, in the alternative, for summary judgment, in his
lawsuit under the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2, and
the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). Welcome
argues that the district court erred when it dismissed his complaint on the ground
that he had waived all of his claims by pursuing an appeal of those claims to the
Federal Circuit Court of Appeals after the Merit Systems Protection Board
(“MSPB”) entered an unfavorable ruling.
We review de novo a district court’s order granting a motion to dismiss.
McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004).
If a civil service employee is removed from his position, the employee may
appeal the removal to the MSPB. 5 U.S.C. §§ 7512, 7513(d). When the employee
appeals the removal to the MSPB and asserts that it was based totally or partially
on race discrimination, he has brought a “mixed case.” See 29 C.F.R.
§ 1614.302(a). If the employee asserts a mixed claim before the MSPB and
receives an adverse ruling, one of the employee’s options is to seek judicial review
of the MSPB’s decision, through either the Federal Circuit Court of Appeals or the
federal district court. See 5 U.S.C. § 7703(a)(1), (b)(1); Chappell v. Chao, 388
F.3d 1373, 1375 (11th Cir. 2004).
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Case: 16-17079 Date Filed: 07/07/2017 Page: 3 of 3
If the employee chooses to appeal the personnel claims to the Court of
Appeals, he abandons his discrimination claims because that Court lacks
jurisdiction to hear such claims. See 5 U.S.C. § 7703; Chappell, 388 F.3d at 1374.
Thus, if the employee wants to pursue any type of discrimination claim on appeal,
he must file a complaint in a United States District Court, as a district court is the
only forum in which an employee can seek review of both parts of a mixed claim.
Chappell, 388 F.3d at 1375–76. In short, in appealing the MSPB decision to the
Federal Circuit Court of Appeals, he waives his right to pursue in that Court not
only any discrimination claims he raised before the MSPB, but any other
discrimination claims arising out of the same facts as well. Id. at 1378.
After receiving unfavorable decisions from the MSPB, Welcome chose to
pursue an appeal in the Federal Circuit, which lacked jurisdiction over his
discrimination claims. He thereby waived his right to appeal any discrimination
claims he raised before the MSPB. See Chappell, 388 F.3d at 1375–76, 1378. All
of the claims he raised in the instant case before the District Court were either
directly raised before the MSPB, or were based on the facts that gave rise to the
claims he presented to the MSPB. Therefore, the District Court correctly
determined that he had waived all claims and dismissed his lawsuit.
AFFIRMED.
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